Is it Woe for Roe?

 

The View from the Middle

 

Let me admit right up front that it is very difficult to predict what the Supreme Court will do, especially on politically polarized issues.  My first attempt to follow the arguments was back in 2015 when the constitutionality of the Affordable Care Act was being challenged and the proceedings were being broadcast.  It was a fascinating experience, but in the end, I got it wrong.  I was sure that the court would throw out the individual mandate thus gutting the entire law, and I did predict a 5-4 vote, which turned out to be correct.  However, I had Chief Justice Roberts on the wrong side of the ledger and the Supreme Court supported the ACA.

So, even though I have an 0-1 record, I made the investment to listen to the entirety of the oral arguments on the Mississippi abortion law and I’m going to make a prediction.  First, however, let me give you some insight into what I think were the key questions asked on both sides by the Justices which should give us all an idea of how they might vote.

Maybe the easiest Justice to figure out was Justice Clarence Thomas.  He asked the first question and went right to the heart of the issue.  He wanted to know what right was being protected by the Roe v Wade decision.  It was a simple question that goes to the heart of the issue of the constitutionality of the Roe decision.  His point was that Roe was wrongly decided in 1973 and so it is still misguided today.  

This immediately attacked the government’s main argument that the court should consider stare decisis (precedence) when deciding this case.  Justice Kavanaugh made the best assault on this strategy by pointing out the many times the court has correctly overrode precedent.  His most powerful example was when the court nullified Plessy v Ferguson through its decision in Brown v the Board of Education.  Plessy established a concept known as “separate but equal” which Brown found to be unconstitutional.  Brown argued that “separate”, especially in education, was inherently unequal.  Plessy had been the law of the land for almost 60 years when it was overruled by Brown in 1954.  This example also attacked the idea that Roe should be considered a “super” precedence because it has been the law since 1973.  Kavanaugh was insinuating that Roe was wrong when it was originally decided as was Plessy and should be corrected, no matter how long ago the error occurred.

Kavanaugh also suggested that there are two conflicting interests involved in any abortion, the interest of the woman or mother and the interest of the fetus or unborn child.  He argued that the government should not be involved in choosing one interest over the other.  He actually said that the government should be “scrupulously neutral” in this area.  His questioning brought the interests of the unborn, which was ignored in Roe, into the discussion, and rightfully so.  The states would then decide where to draw that line.

On the other side of the argument, both Justice Sotomayor and Breyer argued that overturning Roe would politicize the court.  Sotomayor actually asked if the court could withstand the “stench” of a reversal.  To me this sounded like a political argument to keep Roe, not a judicial one.  In effect she was suggesting that the court needed to act politically now to avoid appearing political in supporting Mississippi’s position.  Wow.  I wonder if anyone is falling for that?

Justice Sotomayor also made a couple of totally insensitive suggestions.  For example, the Mississippi Attorney General argued that science has now proven that a fetus can feel pain as early as 15 weeks into a pregnancy, because it has been shown that an unborn child reacts to stimulus in the womb at that age.  Sotomayor then suggested that dead people and people who are brain dead, also respond to stimulus.  My question is, how long after death does a body continue to react to stimulus.  One hour?  One day?  15 weeks?  I doubt it.  This the first time, to my knowledge, that a Supreme Court Justice has compared a thriving unborn child to a dead person.  I found this comparison a sad attempt to dehumanize the unborn.

All this considered, I predict that the liberal Justices (Sotomayor, Breyer and Kagan) will stick together and vote against the Mississippi position.  I also predict that the Mississippi law will be upheld with a 5-4 or 6-3 vote.  I’m still not sure of Chief Justice Roberts.   

And finally, do not fall for the lie that if the Court finds in favor of the state of Mississippi that abortion will become illegal in this country and women will be dying in back alleys as a result.  It just means that laws protecting abortion will be decided in the states as is dictated by the 10^th amendment to the Constitution.  That amendment states clearly that all powers not delegated to the United States by the Constitution… are reserved to the states respectively.  This was Justice Thomas’ point from the very beginning.  California could pass a law that allows partial birth abortion and Mississippi can limit abortion to the first 15 weeks of pregnancy.  Even in Mississippi, however, this should not create a hardship.  Today, for example, 90% of abortions already occur within the first 15 weeks of pregnancy.  With a little extra thought and planning on the mother’s part and with some exceptions built in for women who don’t recognize their condition in time, the Mississippi law can accommodate virtually everyone.

Roe will be overturned or, at a minimum, be severely altered.  The left will claim a mass slaughter of women, which will never happen, and they will make it a huge issue in the mid-term elections.  After that, the states will do their jobs at creating laws that walk that fine line between protecting women’s rights and the rights of the unborn (Kavanaugh’s point).  And if adoptions increased in America as result, that wouldn’t be a bad thing.